Human Rights Law Notes
Introduction to Human Rights Law
Introduction and Course Overview
The class began on Monday with introductions, but due to some absences, the introduction will continue.
Students who were not present on Monday should in troduce themselves, explain their interest in human rights law, and mention two human rights-related events of significance in recent years.
Double Standards in Human Rights
There are concerns about double standards in the application of human rights principles globally.
Some perceive that certain regions, particularly Africa, receive different treatment compared to other parts of the world regarding human rights issues.
Constitutionalization of Socioeconomic Rights
The constitutionalization of socioeconomic rights is an interesting topic, especially in Botswana.
Many people still lack access to basic necessities like water and healthcare.
Artisanal mining and its impact on children's rights is another area of concern, particularly in Zimbabwe, Burkina Faso, and Congo.
Children are often denied education due to being forced to work in these mines.
Botswana's Commission on Constitutional Review (2021)
The commission's report should have been of interest to students, as it relates to many of their courses.
The commission is viewed as having failed Botswana because it did not address key issues like constitutionalizing comprehensive systemic rights.
The commission only proposed including the right to health in the constitution.
There are questions about why other rights, such as the right to education and water, were not considered.
Even 51 years after independence, access to water remains a problem in both urban and rural areas.
Water quality is also a concern, with some water being unfit for human consumption.
Gender and Women's Rights
Access to abortion in Botswana is heavily regulated, raising questions about bodily autonomy.
Gender-based violence is a significant issue, although the president has controversially stated that it is simply violence.
Internationally, gender-based violence is recognized as a human rights violation.
The president's statement is considered reckless due to his power and influence.
The Power of the President
The president's remarks on the judiciary are concerning, as they can influence judges.
There needs to be a proper transition from being an activist to being a president with executive powers.
The president has significant power, as outlined in section 47, and can potentially halt processes within the jurisdiction.
Trump's decisions were cited as an example of how a president's actions can directly affect people's lives globally.
A person in rural Havana might lose access to HIV medication due to decisions made in Washington.
The president's statements can compromise the trajectory of human rights, particularly gender-based violence.
Historical Context of President's Views on Gender-Based Violence
The president previously expressed similar views in parliament in 2018 when he was the leader of the opposition.
He challenged parliament to prove the existence of gender-based violence, suggesting it was just violence stemming from socialization and cultural output.
The lack of strong condemnation at the time may have emboldened him to repeat these views.
More action is needed, such as writing to the president to withdraw the statement.
Impact on the Judiciary and Public Opinion
A magistrate might treat a case of gender-based violence casually due to the president's statement.
Social media reflects a division in public opinion, with some rallying behind the president, indicating inherent patriarchy and misogyny in Botswana.
The President as a Lawyer
The president's legal background is a factor, with his legal approach potentially influencing his actions.
There is a need for the president to adopt a softer approach, recognizing the importance of the task and avoiding causing further problems.
The president is learning and evolving, influenced by social media and public commentary.
UDC and Freedom of Expression
The right to vote is an aspect of freedom of expression.
Some believe that people voted for the UDC not necessarily because they wanted the UDC but because they were unhappy with the BDP.
In 2019, the UDC only received 36% of the total vote, increasing to 37% currently.
The BCP received 12% of the vote after pulling out of the UDC, indicating that a majority (63%) did not vote for the UDC.
There are concerns about whether the UDC's ambitious manifesto will materialize.
Social Contract and Government Accountability
The government has a social contract with the people, who should be making demands.
The UDC provided timelines for their promises, raising expectations.
There are questions about what happens if the UDC fails to deliver on its promises.
Citizens have not historically held the government accountable for failing to deliver on basics.
Manifestos of political parties are often ambitious, similar to promises made at the SRC level.
Citizens should consider how to vindicate their rights when the government fails to deliver.
UDC's Promises and Timelines
The UDC deserves a grace period, but the timelines they set were potentially deceptive.
They knew audits would be necessary upon coming into power, making immediate implementation difficult.
Promises, such as paying 1.8 per month to elders and making Monitor for Chamachama a grant, had specific timelines.
These timelines have been breached, causing concern.
Freedom and Other Human Rights
Losing freedom can affect other human rights, such as healthcare and the right to life.
Freedom is an all-encompassing right that enables the exercise of other rights.
Prisoners' demands for conjugal rights have been raised, arguing that if freedom of movement is restricted, other rights should be available.
The Criminal Justice System and Human Rights
The aim of the youth criminal system should be to assist them.
Dehumanization of criminals starts at the point of arrest, not just after conviction.
Even for minor offenses, arrests can be aggressive and threatening.
There is a need to comprehensively address the justice system.
Conjugal Rights and the Prison System
The government or justice system should group crimes to determine which ones warrant denial of criminal rights.
Denying conjugal rights to prisoners can have negative effects on marriages and the institution of marriage.
Economic factors, such as layoffs, can lead to crime, and denying basic rights can exacerbate the issue.
Interlinked Nature of Human Rights
Human rights are integrated, intertwined, and interlinked.
Denying ARVs to prisoners is a life-threatening punishment.
It is unfair to deny foreign prisoners ARVs when they are in the system's care.
Denying ARVs is not just about control but also about life-sustaining benefits.
Justice and Systemic Issues
The justice system has a price tag, affecting both the poor and the rich.
Systemic machineries can slow down the legal process, frustrating human rights lawyers.
Some human rights violations cannot be remedied, regardless of financial compensation.
Effectiveness of International Institutions
The effectiveness of institutions like the United Nations and the African Union is questioned.
If these bodies are failing, it raises concerns about what can be done locally to promote and protect human rights.
The collapse of systems like the SADC tribunal due to non-compliance from member states is a concern.
Quasi-Judicial Systems and Access to Justice
There is a need to consider quasi-judicial systems to supplement the judicial system.
Facilitating access to justice is crucial, and the establishment of a human rights commission in Botswana should be considered.
The powers and limitations of institutions like the Ombudsman should be examined.
Failures of the Judiciary
The judiciary is failing due to the length of time cases take.
Divorce cases can take up to five years due to the slow judicial system.
Cases can be postponed repeatedly, causing frustration for clients.
There are challenges in explaining delays to clients and ensuring their rights are protected.
Urgent Applications and Human Rights Violations
Courts are stringent when it comes to urgent applications.
If a client's rights are being violated and it does not meet the threshold for an urgent application, remedies may take years.
The justice system is failing the human rights system, which is overly dependent on a speedy system.
Boundaries of Human Rights
There is a need to set boundaries for those who benefit from the human rights system.
Entitlement can have negative effects, and the domino effect can work negatively.
Entitling prisoners to conjugal rights, for example, might lead to discrimination.
Equality and Dignity
Human rights ideology is about equality, and prisoners should be viewed through the lens of their humanity and dignity.
Even if someone has committed rape, they still have the right to dignity.
Human rights does not always consider community values, which may call for different treatment based on offenses.
Contextual Nature of Human Rights
The treatment of offenses varies depending on the context.
Adultery by women can be severely punished in some contexts, while stealing may be severely punished in others.
The dependence on context makes human rights elusive and confusing.
Eurocentric Bias in Human Rights and International Law
Human rights and international law can seem boring because they are difficult to place in local contexts.
They have often been constructed from a Eurocentric point of view and imposed without considering local ideologies.
These theories are based on a dark history and are difficult to understand and confine.
The Need for Contextualization
Human rights should be contextualized to address the specific needs of Asia and Africa.
Efforts should be made to make human rights speak to and address local needs.